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The Truth About References

12/7/2017

There are lots of misconceptions and concerns around giving references, and it is a topic that many of my clients ask about, so here are our top five things every employer should know before giving a reference:

There is no legal duty to provide a reference

Whilst there is usually no obligation to provide a reference (with the exception of a couple of specific sectors) it is important to bear in mind that a refusal is likely to be interpreted is a negative manner i.e. that the reference would be very bad.

References must be true, accurate and fair

Employers have a duty towards the employee and the recipient of the reference so they must take reasonable care to ensure the information being given is true, accurate and fair, and doesn’t give a misleading impression.

Failure to take such care may result in the employer facing legal action if a negligent, careless or misleading reference causes the employee financial loss.

Be Consistent

It is sensible to adopt a policy on giving references to ensure a consistent approach is being taken when giving references. For example, who in the business will provide references and what information should be included.

Settlement agreements

When an employer receives a reference request for someone who has left under a settlement agreement it is essential to check the wording of any reference agreed as part of the settlement and ensure this is provided to the recipient.

Sickness Absence

Employers must get explicit consent from the employee if they are providing sensitive personal data, such as mental health information. Some reference requests ask for ‘number of days an employee has been absent’ and whilst providing the number of days, but not the reasons why, doesn’t require explicit consent there is still a risk of disability discrimination.

Finally, whilst the Data Protection Act does permit a previous employer to give a reference in confidence and refuse to provide the ex-employee with a copy, no such provision exists for the new employer that receives the reference. This means that, in most cases, if the employee puts in a request to their new employer, they will be able to see the reference the old employer provided.